Custody Disputes & Non-Traditional Families

Non-traditional couples are becoming more common. More and more non-traditional couples are having children, as well. But what happens when the couple does not stay together? How do courts make custody determinations in cases involving a biological parent and a non-biological parent? The law in North Carolina on this topic has been developing in recent years.

In order to have standing to seek custody of a child with whom you do not have a biological relationship, one must have established a parent/child relationship with the child and allege that the biological parent has 1) taken steps which are inconsistent with his or his parental status, and/or 2) is unfit. With same sex couples, it is most often the first prong that gets them footing to seek custody. If the biological parent of the child has voluntarily conferred parenting rights and responsibilities on someone who is a non-parent, that is considered taking steps which are inconsistent with the parent’s constitutionally protected parental status. For example, if you (the non-biological parent):

• Participated in, and/or perhaps paid for, conception of the child;
• Participated in the pregnancy by attending doctor appointments, preparing a nursery in the home, etc.;
• You and the biological parent have held yourselves out as parents of the child to friends and family;
• Were present for the child’s birth;
• Participated in the child’s upbringing (daily care, discipline, learning, etc.);
• Cared for the child long-term in the biological parent’s absence.*

*This is not an exclusive list, just examples.

Whether a same-sex couple has been married in a state which recognizes such marriages has no bearing on the non-biological parent’s standing to seek custody. The fact that North Carolina does not recognize such marriages also has no bearing on a custody determination in these circumstances. What matters most is the non-biological parent’s relationship with the child. A couple’s relationship ending does not mean that the non-biological parent’s relationship with the child is severed. Speak to a lawyer about your rights as a non-biological parent.

Non-Traditional Families Need to Cover Their Bases

It is important that non-traditional families go the extra mile to plan and prepare for starting a family. North Carolina does not recognize same-sex marriages even if the marriage was performed in a state which does recognize such marriages. Further, there are no custody statutes which specifically address how custody disputes are dealt with in non-traditional families and there are no applicable property division statutes, like there are for traditional married couples.

When bringing children into the equation, a parenting agreement is very important. The parenting agreement formalizes the parents’ intent in creating their family, and what their expectations are for their roles as parents. This is something that should be done contemporaneously with having a child for the protection of both parents.

Property considerations need to be thought out in advance as well. Unlike traditional married couples who can petition the court for equitable distribution of their marital and divisible property (i.e., have a judge decide who gets what), there is no such law applicable to couples who are not married or who are in a marriage which is not recognized by North Carolina.

Blog written by Courtney Smith


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